Adoption Act, Cap 143
(Repealed by The Children’s Act, Cap 141)
LAWS OF KENYA
The Adoption Act
Cap 143
Published by the National Council for Law Reporting
With the Authority of the Attorney-General
THE ADOPTION ACT
CHAPTER 143
ARRANGEMENT OF SECTIONS
PART I-PRELIMINARY
Sections
1-Short title.
2-Interpretation.
3-Power to make adoption orders.
3A-Jurisdiction of a Resident Magistrate's Court.
4-Restrictions on making adoption orders.
5-Consent to adoption.
6-Evidence of consent of parent or guardian.
7F-unctions of court as to adoption orders
7A-Appointment of provisional guardian.
7B-Consent to future adoption.
8-Interim orders.
9-Adoption order in respect of infants previously adopted
10-Custody of infant when order refused.
11-Appeal.
12-Power to make rules and procedure
12A-Appointment of guardians ad litem
PART III-REGISTRATION OF ADOPTION ORDERS
13-Adopted Children Register.
14-Registration of adoptions.
15-Amendment of orders and rectification of registers.
PART IV-EFFECTS OF ADOPTION ORDERS
16-Rights and duties of parents and capacity to marry.
17-Workmen's compensation.
18-Orders and agreements respecting illegitimate children.
19-Intestacies, wills and settlements.
20-Provisions supplementary to section 19.
21-Effect of overseas adoption.
PART V-ADOPTION SOCIETIES
22-Restriction on making arrangements for adoption.
23-Approval of adoption societies.
24-Procedure.
25-Functions of adoption societies.
26-Arrangements by adoption societies for adoption
27-Inspection of books, etc., of adoption societies
28-Information to be confidential.
29-Prohibition of certain payments.
30-Restriction upon advertisements.
31-Offences under parts V and VI
32-Service of notices.
33-Powers of local authorities.
34-Expenses.
35-Regulations.
36-Exemption.
37-Adoptions under previous law.
SCHEDULES
THE ADOPTION ACT
CHAPTER 143
2 of 1958, 9 of 1967, 4 of 1978, 13 of 1980
Commencement Date: 1959-06-16
An Act of Parliament to make provision for the making and registration of adoption orders; to provide for the registration and control of adoption societies; to regulate the making of arrangements by adoption societies and other persons in connexion with the adoption of children; to restrict the making and receipt of payments in connexion with the adoption of children; and for connected purposes
PART I-PRELIMINARY
Short title.
1.This Act may be cited as the Adoption Act.
Interpretation.
9 of 1967, Sch., 4 of 1978, s.2
2.(1) In this Act, unless the text otherwise requires -
“adoption order” has the meaning assigned to it by section 3;
“adoption society” means a society approved by the Minister under section 23, and a local authority which has been approved by the Minister as an adoption society under that section;
“body of persons” means any body of persons, whether incorporate or unincorporate;
“charitable association” means a body of persons which exists only for the purpose of promoting a charitable, benevolent or philanthropic object, whether or not the object is charitable within the meaning of any rule of law, and which applies the whole of its profits (if any) or other income in promoting the object for which it exists:
“the court” means the High Court or a Resident Magistrates Court acting in the exercise of the jurisdiction conferred on it by section 3A;
“EastAfricanTerritories" means Kenya, Uganda and Tanzania;
“father”, in relation to an illegitimate infant, means the natural father;
“guardian”, in relation to an infant, means a person appointed by deed or will, in accordance with the provisions of any written law relating to the guardianship of infants for the time being in force in Kenya, or by a court of competent jurisdiction, to be the guardian of the infant;
“infant” means a person under eighteen years of age, but does not include a person who is or has been married;
“interim order” means an order under section 8;
“parent” does not include the natural father of an illegitimate infant;
“relative”, in relation to an infant, means a grandparent, brother, sister, uncle or aunt, whether of the full blood, of the half-blood or by affinity, and -
(a) where an adoption order has been made in respect of the infant or any other person under this Act or any other law relating to adoption for the time being in force in any of the East African Territories or the United Kingdom, any person who would be a relative of the infant within the meaning of this definition if the adopted person were the child of the adopter born in lawful wedlock;
(b) where the infant is illegitimate and the father has acknowledged paternity and is contributing towards the maintenance of the infant, the father of the infant and any person who would be a relative of the infant within the meaning of this definition if the infant were a legitimate child of his mother and father;
“spouse”, in relation to a wife of a polygamous marriage, means the wife applying for an adoption order either as sole applicant or jointly with her husband or the wife into whose care a husband applying for an adoption order proposes to give the infant.
(2) For the purposes of this Act, a person shall be deemed to make arrangements for the adoption of an infant if, not being a parent or guardian of the infant, he enters into or makes any agreement or arrangement for, or for facilitating, the adoption of the infant by any other person, whether the adoption is effected, or is intended to be effected, is pursuance of an adoption order or otherwise, or if he initiates or takes part in any negotiations of which the purpose or effect is the conclusion of any agreement or the making of any arrangement therefor, or if he causes another to do so.
PART II-MAKING OF ADOPTION ORDERS
Power to make adoption orders.
4 of 1978, s.3
3. (1) Subject to this Act, the court may, upon an application made in the prescribed manner, make an order (in this Act referred to as an adoption order) authorizing the applicant to adopt an infant.
(2) An adoption order may be made on the application of two spouses authorizing them jointly to adopt an infant.
(3) An adoption order may be made authorizing the adoption of an infant by the mother or father of the infant, either alone or jointly with her or his spouse.
(4) All proceedings under this Act shall be heard and determined in chambers.
(5) Any officer of an adoption society may draw or prepare any document relating to any proceedings under this Act and may carry on any such proceedings on behalf of an applicant for an adoption order:
Provided that no fee, gain or reward other than a voluntary contribution to the adoption society may be accepted or received directly or indirectly therefor.
Jurisdiction of a Resident’s Magistrate’s Court.
L.N. 4 of 1978
3A. (1) A Resident Magistrate's Court shall have jurisdiction to hear and determine applications for adoption orders in cases where all consents required by subsection (6) of section 4 have been signified in the manner prescribed by section 6, and where the making of an order does not require justification as an exceptional measure under subsection (3) of section 4.
(2) If in the course of an application for an adoption order in a Resident Magistrate's Court any consent is withdrawn or it appears to the court that the applicant is a person to whom subsection (3) of section 4 apply or that for any other reason it is desirable so to do, the court shall adjourn the application and transfer it to the High Court which shall proceed from the point at which the application was transferred.
Restrictions on making adoption orders.
4. (1) An adoption order shall not be made in respect of an infant unless the applicant or, in the case of a joint application, one of the applicants -
(a) has attained the age of twenty-five years and is at least twenty-one years older than the infant; or
(b) has attained the age of twenty-one years and is a relative of the infant; or
(c) is the mother or father of the infant.
(2) Except as provided by subsection (2) of section 3 an adoption order shall not be made authorizing more than one person to adopt an infant.
(3) Unless the court is satisfied that there arc special circumstances which justify as an exceptional measure the making of an adoption order, an adoption order shall not be made in favour of -
(a) a sole applicant who is a male;
(b) a spouse or spouses of a polygamous marriage;
(c) an applicant who is of a different race from the infant.
(4) An adoption order shall not be made unless the applicant and the infant reside in Kenya.
(5) An adoption order shall not be made in respect of any infant unless the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the presentation to the court of the application for the order.
(6) Subject to section 5 an adoption order shall not be made -
(a) in any case, except with the consent of every person or body who is a parent or guardian of the infant or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant;
(b) in the case of an illegitimate infant whose paternity has been acknowledged and to whose maintenance contributions are being made by the father of the infant, except with the consent of the father;
(c) in the case of an illegitimate infant whose mother has not yet attained the age of eighteen years, except with the consent of the parents of the mother;
(d) on the application of one of two spouses, except with the consent of the other spouse.
Consent to adoption.
4 of 1978, s.6
5.(1) The Court may dispense with any consent required by paragraph (a), (b) or (c) of subsection (6) of section 4 if it is satisfied -
(a) in the case of a parent or guardian of the infant, that he has abandoned, neglected, persistently failed to maintain or persistently ill-treated the infant, or that he has failed to exercise the normal duty and care of parenthood in respect of the infant:
Provided that -
(i) abandonment may be presumed if the infant appears to have been abandoned at birth or if the person or body having care and possession of the infant has neither seen nor heard from a parent or guardian of the infant for a period of at least six consecutive months;
(ii) persistent failure to maintain may be presumed where, despite demands made, no parent or guardian has contributed to the maintenance of the infant for a period of at least six consecutive months and such failure is not due to poverty;
(b) in the case of a person liable by virtue of an order of agreement to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute;
(c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld;
(d) in any case, that a provisional adoption order has been made in respect of the infant under section 53 of the Adoption Act, 1958, of the United Kingdom or under the corresponding provision of any former or subsequent Act of the United Kingdom or under the corresponding provision of any Act or Ordinance of any country in the Commonwealth.
(2) The court may dispense with the consent of the spouse of an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving the consent or that the spouses have separated and are living apart and that the separation is likely to be permanent.
(3) The consent of any person to the making of an adoption order in pursuance of an application may be given (either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up) without knowing the identity of the applicant for the order; and where the consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for me purposes of this section to be unreasonably withheld.
(4) While an application for an adoption order in respect of an infant is pending in any court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant.
(5) An applicant for an adoption order may at the time of filing his application or at any time thereafter while such application is pending apply to the court for the custody of the infant pending the decision of the court on the application for an adoption order.
(6) In considering whether or not to dispense with the consent of any person to the making of an adoption order or whether to grant or refuse leave or custody under the provisions of subsection (4) or (5) the court shall regard the interests of the infant as paramount and subject thereto shall consider firstly the interests of the parents and relatives of the infant and secondly the interests of applicants.
(7) Any consent to the making of an adoption order may be withdrawn without leave of the court at any time prior to the making of an order.
Evidence of consent of parent or guardian.
4 of 1978, s.7
6. (1) Where any person whose consent to the making of an adoption order is required by paragraph (a),(b) or (c) of subsection (6) of section 4 does not attend in the proceedings for the purpose of giving it, then, subject to the provisions of subsection (3) of this section, a document, in the prescribed form and attested by a person of any such class as may be prescribed, signifying his consent to the making of such an order shall, if the person in whose favour the order is to be made is named in the document or (where the identity of that person is not known to the consenting party) is distinguished therein in the prescribed manner, be admissible as evidence of that consent, whether the document is executed before or after the commencement of the proceedings.
(2) Any such document, whether executed in or outside Kenya, shall be admissible without further proof of the signature of the person by whom it was executed; and, for the purposes of this subsection, a document purporting to be attested as aforesaid shall be deemed to be so attested, and to be executed and attested on the date and at the place specified therein, unless the contrary is proved.
(3) A document signifying the consent of the mother of an infant shall not be admissible under this section unless -
(a) the infant is at least six weeks old on the date of the execution of the document; and
(b) the document is attested on that date by a person of a class prescribed for the purposes of subsection (1).
Functions of court as to adoption orders.
7. (1) The court before making an adoption order shall be satisfied -
(a) that every person whose consent is necessary under this Act, and whose consent is not dispensed with, has consented to and understands the nature
and effect of the adoption order for which application is made, and in particular, in the case of any parent, understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights;
(b) that the order if made will be in the best interests of the infant, due consideration being for this purpose given to the wishes of the infant, having regard to the age and understanding of the infant, and to the ability of the applicant to maintain and educate him;
(c) that the applicant has not received or agreed to receive, and that no person has made or given or agreed to make or give to the applicant, any payment or other reward in consideration of the adoption contrary to section 29;
(d) that any person whose consent is dispensed with on the grounds of incapacity is still incapable of giving his consent at the date of making the order; and
(e) where the applicant is not himself a relative of the infant, that reasonable steps have been taken to inform the relatives of the infant of the proposed adoption and that no relative able to accept the care of the infant has expressed willingness to do so.
(2) The court in an adoption order may impose such terms and conditions as it may think fit and in particular and without prejudice to the generality of the foregoing, the court may -
(a) require the adapter by bond or otherwise to make for the infant such provision as in the opinion of the court is just and expedient;
(b) order that the infant shall not be removed from the jurisdiction of the court without the consent of the court for such period not exceeding two years as it may specify;
(c) require the adopter to accept supervision by and advice from an adoption society specified by the court for such period not exceeding two years as the court may specify;
(d) where consent to the making of an adoption order is conditional upon the infant being brought up in a particular religious persuasion, require the infant to be brought up in that religious persuasion;
(e) require the adopter to furnish such security by bond or otherwise as the court may think fit for the due performance of any condition the court may impose.
Appointment of provisional guardian.
4 of 1978, s.9
7A.(1) The court may, on the application of the adopter or of its own motion, at the time of making an adoption order appoint any person approved by the adopter and whose prior consent thereto has been given in writing to be guardian of the infant in the event of the adopter or both adopters where two spouses have applied for the adoption order, dying before the infant is of full age.
(2) The court may, at any time before the infant is of full age on the application of the adopter, or of a guardian appointed under subsection (1), or of the infant, revoke any such appointment and appoint any other person to be guardian of the infant.
Consent to future adoption.
4 of 1978, s.9, Cap 141
7B.(1) Where an infant is in the care and possession of an adoption society, consent to the future adoption of the infant by an adopter approved by such society may be given by those persons where consent to the making of an adoption order is required by the provisions of paragraph (a), (b) or (c) of subsection (6) of section 4.
(2) Any such consent shall be signified in the manner provided in section 6 and the provisions of that section shall apply to any document signifying consent notwithstanding the omission therefrom of the name of the person in whose favour the adoption order is to be made or any other reference to an applicant for an adoption order.
(3) In the event of the adoption society being unable to find a suitable adopter within twelve months of the date of the last consent given under the provisions of this section, the society shall notify the persons whose consent has been given as aforesaid of such failure and may request them to remove the infant from the care and possession of the society.
(4) If within one month of any such request the infant has not been removed from the care and possession of the society, the infant shall be deemed to be in need of protection or discipline and on the application of the adoption society a court of competent jurisdiction may commit the infant to the care of a fit person under section 25 of the Children and Young Persons Act.